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1999 Supreme(Guj) 241
Gujarat High Court
Judgename :B.C.PATEL
KANTILAL MOTIBHAI LIMBACHIA - Appellant
Versus
RAMANBHAI VALLABHBHAI GANDHI - Respondent
CRIMINAL APPEAL 211 of 1992
Decided On : 05/07/1999
Headnote:Criminal Procedure Code, 1973 — Sec. 378 — Appeal against acquittal of respondent of an offence punishable under Sec. 16(1)(a)(i) of Prevention of Food Adulteration Act — Trial Court in the case scrutinising the evidence arrived at conclusion and rightly so that sample in the case was properly collected & there was no breach of Rules & Act in the procedure — It however erroneously held that in the State of Gujarat coconut oil is being used as hair oil & therefore, provisions contained in the Act & Rules are not applicable — In this regard Court referred to Sub-clause (v) of Sec. 2 of the Act and Division Bench Judgment in case U.H. Shah vs. Abdul Habib, 1976 GLR 990 to make it clear that coconut oil is covered under the article of food — There is no merit also in the contention raised on behalf of respondents that sample sent by Food Inspector on 24.12.1986 vide Exh. 17 was received by Public Analyst on 29.12.1986 — Trial Court committed serious error in acquitting the accused of the offence with which he was charged — As a result acquittal of respondent accused is set aside & he is sentenced to suffer imprisonment for six months & to pay a fine of Rs. 1000 only & in default to undergo 15 days simple imprisonment — It is minimum sentence under the Act & therefore question of hearing the accused on that Court does not arise — However, in the peculiar facts & circumstances Court suspended the sentence of imprisonment for a period of four months to enable accused to make an application to State Govt. for remission of sentence of imprisonment.
After going through the evidence, I am of the opinion that the Trial Court has taken care in scrutinising the evidence and has arrived at a conclusion that after following the procedure, sample was collected, and therefore, no breach of Rules or Act was committed while collecting the sample.
[Para 4]
So far as coconut oil is concerned, the Trial Court has committed serious error in arriving at a conclusion that in the State of Gujarat, Coconut Oil is being used as hair oil, and, therefore, the provisions contained in the Act and the Rules are not applicable.
[Para 6]
Learned advocate Mr. Soparkar submitted that coconut oil is not being used as a food in the State of Gujarat. However, his attention was drawn to the judgment of the Division Bench referred to hereinabove, and, therefore, he did not pursue that point further.
[Para 14]
The evidence clearly reveals that the Food Inspector forwarded the same on 24.12.1986, vide Exh. 20 (Registered with Acknowledgment Due). It is true that if the same was forwarded on 24.12.1986, it could not have reached on the same date in view of the distance. Mr. Vyas, learned counsel submitted that the specimen impression of the seal was forwarded separately, a copy of which is produced vide Exh. 18. Number of the sample mentioned is : Code No. 5/SRT/NVS-N/1/33/86. The same number is mentioned in Exh. 25 at two places, one in Column No. 1 for Code No. & Serial No., and the other in the column of Code No. & Sr. No. of L.H.A. Slip. Moreover, Exh. 25, it clearly states that sample received through Railway Parcel on 29.12.1986. This document is signed by Public Analyst, Food & Drugs Laboratory, Baroda and also bears stamp of the said office. Even in the analysis report Exh. 24 it is clearly stated that the sample is received on the 29th day of December 1986 from Food Inspector, Navsari Muni, a sample of Coconut Oil properly sealed and fastened and that I found the seal intact and unbroken. The seal fixed on the container and the outer cover of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector and the sample was in a condition fit for analysis. In the report, the aforesaid Code number is also clearly mentioned. Hence there is no merit in this contention raised by Mr. Soparkar. The sample sent by the Food Inspector on 24.12.1986 vide Exh. 17 was received by the Public Analyst, Baroda on 29th December, 1986. The Trial Court has committed a serious error in acquitting the accused on this ground.
[Para 15]
When it is a case of conviction and if the minimum sentence is imposed, the question of hearing the accused on question of sentence would not arise. In the facts and circumstances of the case, I am passing only minimum sentence as provided in Sec. 16(1)(a)(i) of the Act. The respondent accused need not be given an opportunity of hearing. As stated above, the minimum sentence is imprisonment for a term which shall not be less than six months and fine which shall not be less than one thousand rupees. Thus the accused if sentenced to suffer imprisonment for six months and to pay a fine of Rs. 1,000/-, which is minimum under the Act, the question of hearing the accused will not arise.
[Para 20]
In the instant case the accused was dealing in the articles of food. However, being a small vendor, and a period of more than ten years having lapsed, it would be for the State Government to decide the question of remission. Without treating this case as a precedent, in the peculiar facts and circumstances of the present case, the sentence of imprisonment is suspended for a period of four months, to enable the accused to make an application to the State Government for remission of sentence of imprisonment, which the accused shall make within a period of one month from today.
[Para 28]
( 1 ) FOOD Inspector, Navsari has preferred this appeal against the order of acquittal recorded by Chief Judicial Magistrate, Navsari in Criminal Case No. 6361 of 1987 acquitting the accused on 4-12-1990 for an offence punishable under Sec. 16 (1) (a) (i) of the Prevention of Food Adulteration Act (hereinafter referred to as the Act ).
( 2 ) FACTS concisely stated, as it emerges from the record, are as under :-
( 3 ) FOOD Inspector, the appellant herein, on 23-12-1986 at about 1530 hours, collected a sample of 400 gms. of Coconut Oil in the presence of a panch for the purpose of analysis. The vendor was explained about the same as per the provisions contained in the Prevention of Food Adulteration Rules (hereinafter referred to as the Rules ). The appellant collected sample in accordance with law, and thereafter divided the same into three equal parts in dry and clean bottles which were thereafter sealed and packed in accordance with the provisions contained in the Act and Rules. One sample bottle was forwarded to the Public Analyst for analysis on 24-12-1986 which was received by the Public Analyst on 29-12-1986. Two samples were forwarded to the Local Health Authority in accordance with the provisions of the Act and Rules.
( 4 ) THE Public Analyst, by his report, vide Exh. 24, dated 16-1-1997 opined that the sample of Coconut Oil did not conform to the standards and the provisions laid down under the Prevention of Food Adulteration Rules, 1955. On receipt of the report, the Food Inspector, after consent being accorded on 4-3-1987, filed a complaint on 21-8-1987. The Food Inspector forwarded a copy of the report to the accused as contemplated under Sec. 13 (2) of the Act. The trial Court acquitted respondent No. 1-accused on the following grounds : (I) Coconut Oil is usually preferred in the State of Gujarat as hair oil, and therefore, the provisions contained in the Act and the Rules are not applicable insofar as coconut oil is concerned. (II) The sample bottle was forwarded on 24-12-1986 to the office of the Public analyst for analysis and on the same day by a separate registered envelope, containing a memorandum having the specimen impression of the seal was forwarded. However, in Exh. 21, there is a reference to the effect that Form no. 7 memorandum along with the specimen impression of the seal was received on 24-12-1986. Hence, in the opinion of the trial Court, it could not have reached on the same day, and, therefore, the evidence cannot be accepted.
( 5 ) MR. Vyas, learned Counsel for the appellant has taken me through the entire evidence. He drew my attention to paragraph 14 of the judgment, to point out that the trial Court has scrutinised the evidence minutely, and the trial Court has come to the conclusion that there is no breach of rules while collecting the sample. The court framed issue No. 1 as under : (1 ). Is it proved by the prosecution that the complainant collected the sample of Coconut Oil in accordance with the provisions contained in the Prevention of Food adulteration Act? the trial Court has answered the above issue in positive.
( 6 ) AFTER going through the evidence, I am of the opinion that the trial Court has taken care in scrutinising the evidence and has arrived at a conclusion that after following the procedure, sample was collected, and, therefore, no breach of rules or Act was committed while collecting the sample.
( 7 ) IN view of the above, even if a panch has turned hostile, if the Court has accepted the evidence of Food Inspector after scrutinising the evidence minutely and has arrived at a conclusion that the procedure laid down has been followed, the evidence cannot be discarded.
( 8 ) SO far as Coconut Oil is concerned, the trial Court has committed serious error in arriving at a conclusion that in the State of Gujarat, Coconut Oil is being used as hair oil, and, therefore, the provisions contained in the Act and the Rules are not applicable.
( 9 ) THE trial Court ought
